Exam Two

What are the basic safeguards put in place in Affirmative Action Plans to minimize harm?

1. Doesn't hurt the male employees' rights 2. Doesn't set aside positions for women 3. There is no quota that needs to be met 4. The plan is only temporarily in place 5. Minimal intrusion to other employees

Two acceptable BFOQs are statutorily allowed under IRCA:

1. English-language skill requirements that are reasonably necessary to the normal operation of the particular business or enterprise. 2. Citizenship requirements specified by law, regulation, executive order, or government contracts, along with citizenship requirements that the U.S. attorney general determines to be essential for doing business with the government.

According to the EEOC, an employer may justify the business necessity of an English-only rule:

1. For communications with customers, co-workers, or supervisors who only speak English. 2. In emergencies or other situations in which workers must speak a common language to promote safety. 3. For cooperative work assignments in which the English-only rule is needed to promote efficiency. For example, a taxi company was permitted to maintain an English-only policy for main office employees to prevent miscommunication during dispatch. 4. To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

An employee may successfully claim discrimination on the basis of national origin if it is shown that:

1. He or she is a member of a protected class (i.e., articulate the employee's national origin). 2. He or she was qualified for the position for which he or she applied or in which he or she was employed. 3. The employer made an employment decision against this employee or applicant. 4. The position was filled by someone who was not a member of the protected class.

Three ways in which affirmative action obligations arise in the workplace:

1. Through Executive Order 11246 2. Judicially as a remedy for a finding of discrimination under Title VII 3. Voluntary affirmative action established by and employer

The two factors to be used in determining availability of employees are

1. the percentage of women and minorities with requisite skills in the reasonable recruitment area, defined as the geographic areas from which the contractor usually seeks or reasonably could seek workers to fill the positions in question, and 2. the percentage of women and minorities among those promotable, transferable, and trainable within the contractor's organization.

To hold an employer liable for racial harassment, the employee must show that the harassment was

1. unwelcome 2. based on race 3. so severe or pervasive that it altered the conditions of employment and created and abusive environment 4. there is a basis for imposing liability on the employer

Comparable worth

A Title VII action for pay discrimination based on gender, in which jobs held mostly by women are compared with comparable jobs held mostly by men in regard to pay to determine if there is gender discrimination

Lilly Ledbetter Fair Pay Act

Amends Title VII to allow the statute of limitations to start each time a paycheck is issued based on the discriminatory pay

When are affirmative action plans required?

As a remedy for discrimination under Title VII or if the employer refuses to change and continues with the discrimination.

Are quotas required when under-representation is found?

As long as the employer can show a legitimate, good-faith effort to reach the affirmative action goals, quotas are not required.

reverse descrimination

Claim brought by a majority member who feels adversely affected by the use of an employer's affirmative action plan.

Affirmative action and veterans

Contractors are required to take affirmative action demonstrating an active effort to hire and promote qualified disabled veterans, other protected veterans, armed forces service medal veterans, and recently separated veterans.

In regards to women and minorities, what does the executive order require?

Contractors who have under-representations of women and minorities in their workplace agree to take steps to ensure adequate representation.

In cases where the employer refuses to remedy disparities found, he or she is _____ from further participation in government contracts.

Debarred

Veterans have priority service in:

Department of Labor job-training programs, allowing them to be given priority over non-veterans for receiving employment, training, and placement services provided in the program.

Exceptions to the equal pay act

Differences in wages are permitted if based on seniority or merit systems, on systems that measure earnings by quantity or quality of production, or on a differential based on "any other factor other than [gender]."

"Gender-Plus" discrimination

Employment discrimination based on gender and some other factor such as marital status or children

Availability is important in order to:

Establish a benchmark against which the demographic composition of the contractor's employees can be compared in order to de for eachtermine whether barriers to equal employment opportunity may exist within particular job groups

True/False. Affirmative action is designed to remedy past discrimination based on race or gender through punishment.

False

True/False. Discrimination based upon citizenship status or "alienage" is prohibited under Title VII.

False

Guidelines on Discrimination Because of Religion or National Origin

Federal guidelines that apply only to federal contractors or agencies and that impose on these employers an affirmative duty to prevent discrimination.

national origin

Individual's, or her or his ancestor's, place of origin (as opposed to citizenship), or physical, cultural, or linguistic characteristics of an origin group.

An important tool for avoiding the liability and being more productive:

Making employees feel included by realizing the myriad of ways in which they are subtly excluded

Can customer preference be used as a BFOQ?

Never. Customer preference is not a defense and cannot be used.

Does affirmative action require employers to remove qualified whites and males from their jobs and give these jobs to minorities and women whether or not they are qualified?

No

Fetal Protection Policies

Policies an employer institutes to protect the fetus or the reproductive capacity of employees.

What classifications can qualify for a BFOQ affirmative defense?

Religion, sex, age and national origin. NEVER race.

Gender stereotypes

The assumption that most or all members of a particular gender must act a certain way

What does the Executive Order 11246 require of federal contractors?

They must agree not to discriminate in the hiring, termination, promotion, pay, and so on of employees on the basis of race, color, religion, gender or national origin

Which contractors does the Executive Order 11246 apply to?

Those employers who contract to furnish the federal government with goods and services (federal contractors)

T/F. The U.S. Supreme Court held that affirmative action can be used to further the educational goal of a diverse student body

True.

Can gender be the basis of any decisions related to employment?

Yes, but ONLY if it is a BFOQ

Affirmative action plan definition

a government contractor's plan containing placement goals for inclusion of women and minorities in the workplace and timetables for accomplishing the goals.

Affirmative action definition according to the EEOC Compliance Manual

actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity

Judicial affirmative action

affirmative action ordered by a court as a remedy for discrimination found by the court to have occurred, rather than arising from Executive Order 11246

According to the OFCCP, the best affirmative actions an employer can take are:

aggressive recruitment, mentoring and training programs for qualified individuals

Affirmative action plans define

an employer's standard for proactively recruiting, hiring and promoting women, minorities, disabled individuals and veterans. Affirmative action is deemed a moral and social obligation to amend historical wrongs and eliminate the present effects of past discrimination.

Glass Ceiling

an unofficially acknowledged barrier to advancement in a profession, especially affecting women and members of minorities.

Title VII's prohibition of race discrimination generally encompasses:

ancestry, physical characteristics, race-linked illness, culture, perception, association, subgroup or "race plus" and reverse race discrimination

adverse employment action

any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee.

Job group analysis

combines job titles with similar content, wage rates, and opportunities. these must have the percentage of minorities and women it employs in each job group

The Paycheck Fairness Act would amend the Equal Pay Act to allow:

compensatory damages now permitted by the law, punitive damages for wage discrimination; prohibit employers from retaliating against employees for disseminating wage information to other employees; create training programs to help women strengthen their negotiation skills; enforce equal pay laws for federal contractors; and require the Department of Labor to work with employers to eliminate pay disparities.

In order for an affirmative action plan to meet the OFCCP requirements, federal contractors must:

develop and implement internal auditing systems that periodically measure the effectiveness of the company's affirmative action plans.

Gender discrimination has many manifestations including:

discrimination in hiring, firing, compensation, training, pregnancy, lactation issues, fetal protection policies, client preferences, dress codes, and child care leave.

The newest version of how to address the issue of making workplaces more inclusive for everyone is

diversity and inclusion

Equal pay act

employers subject to the minimum wage provisions of the FLSA may not use gender as a basis for paying lower wages to an employee for equal work "on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."

The Fair Pay Act seeks to:

end wage discrimination in female- or minority- dominated jobs by ensuring equal pay for equivalent work.

corporate management compliance evaluation

evaluations of mid- and senior - level employee advancement for artificial barriers to advancement of women and minorities

EEO means

freedom from discrimination on the basis of sex, color, religion, national origin, disability and age. EEO rights are guaranteed by federal and state fair employment laws and are enforced by the EEOC

Diversity initiatives are

goals devised to measure acceptance of minorities by embracing cultural differences within the workplace. Diversity initiatives are twofold: valuing diversity and managing diversity. The value of diversity is achieved through awareness, education and positive recognition of cultural differences within the workplace.

Laissez-faire

hands off approach

Micro-Aggression

includes things like not making eye contact with minority or female employees or not giving them other obvious signs of respect one would expect in a workplace, not giving them credit for ideas they propose, but accepting those ideas when they come from someone in the majority, and so forth.

Affirmative action definition

intentional inclusion of women and minorities in the workplace based on a finding of their previous exclusion and/or to address existing discrimination

National Origin discrimination protection

it is unlawful for an employer to limit, segregate, or classify employees in any way on the basis of national origin that would deprive them of the privileges, benefits, or opportunities of employment.

Valuing diversity

learning to accept and appreciate those who are different from the majority and value their contributions to the workplace.

availablity

minorities and women in a geographic area who are qualified for a particular position

OFCCP's enforcement addresses:

only the employer's participation in federal government contracts and contains no provisions for private lawsuits by employees or even penalties for noncompliance by a contractor.

Placement goal

percentage of women and minorities to be hired to correct under-representation, based on availability in the geographic area

Debar

prohibit a federal contractor from further participation in government contracts

Diversity and inclusion is aimed at

realizing the competitive advantage and business opportunity created by a workplace geared to attracting the best talent, increasing creativity, and having a globally competitive workforce.

The Rooney Rule:

requires a team with a vacant head coaching, general manager, or offensive or defensive positions to interview at least one minority candidate.

The qualitative part of the affirmative action plan:

sets out a course of action for how to address any , or other problems found.

To withstand an OFCCP audit, contractors must:

show that they have made good-faith efforts to remove any identified barriers to equal employment opportunity, expand employment opportunities and produce measurable results.

under-representation or under-utilization

significantly fewer minorities or women in the workplace that relevant statistics indicate are available or their qualifications indicate they should be working better jobs.

Organizational profile

staffing patterns showing organizational units; their relationship to each other; and gender, race and ethnic composition

The quantitative part of the affirmative action plan examines:

the contractor's workplace to get a snapshot, of sorts, of who works there in what capacity, as it relates to minorities and women.

Voluntary affirmative action

the employer decides to institute an affirmative action plan on his or her own, regardless of whether the employer is required to do so under the executive order, and despite the fact that no one has brought a Title VII case.

To hold an employer liable for racial harassment, an employee must show that:

the harassment was severe or pervasive enough to alter the conditions of employment

JVA also requires federal contractors to report:

the total number of all current employees in each job category and at each hiring location, and it is mandatory that contractors immediately list all job openings with state employment agencies or other employment outlets.

OFCCP believes that in order for the programs to be effective:

they must be more than the contractor's "business as usual" which, of course, led to the under-representation in the first place

The goal of diversity and inclusion

to work on ensuring that everyone in the workplace feels free to make a contribution and flourish